Introduction: From Ambiguity to Criminalisation – The Anthropological Turn in European Child Protection Law
In less than four decades, Europe has undergone a profound normative transformation in its approach to child sexual abuse. The continent has moved from a regime characterised by legal ambiguity, moral relativism, and at times, institutional complacency, to one of strict criminalisation, zero tolerance, and an ever-expanding penal framework—one that now includes virtual representations, intentions, and digital environments as legally actionable dimensions of abuse.
This shift has been catalysed and rendered irreversible by the digital turn of the early 21st century. The internet has radically altered the scale, visibility, and modalities of child sexual exploitation. It has exposed the globalised infrastructure of abuse—forums, dark web communities, livestreams, and AI-generated content—forcing legal systems to reframe their ontologies of harm, evidence, and criminal intent. In this sense, technology has not only accelerated legal reform; it has redefined its conceptual foundations.
While early international instruments such as the 1959 UN Declaration of the Rights of the Child affirmed the child’s right to protection from neglect and exploitation, the decisive shift began with the 1989 UN Convention on the Rights of the Child (CRC), which remains the cornerstone of international child protection. Article 34 of the CRC specifically obliges States to protect children from all forms of sexual exploitation and abuse, a commitment ratified by all EU Member States.
This legal trajectory intensified with the Treaty of Lisbon (2007), which granted binding legal force to the EU Charter of Fundamental Rights, elevating the rights of the child to a core objective of the European Union (Article 3 TEU). The Directive 2011/93/EU marked the first EU-wide criminal law instrument specifically targeting child sexual abuse, exploitation, and pornography, establishing a unified minimum standard of protection.
However, a 2022 evaluation of the Directive revealed substantial gaps in addressing emerging technologies, prompting an ambitious reform process aimed at future-proofing the legal framework.
This legal evolution reflects not merely an adaptation to external threats, but a deep anthropological transformation in how European societies conceive of the child, sexuality, and justice. The child is no longer merely an object of care or paternalistic protection but has become a legal subject situated at the intersection of vulnerability, digital exposure, and fundamental rights.
I- Context and description
1- Context
In 2011, the European Union adopted Directive 2011/93/EU to establish minimum standards in the areas of prevention, criminalisation, and victim support concerning the sexual abuse and exploitation of children, including child pornography.
At the time, it represented a major step forward in harmonising national legislation across Member States by criminalising these particularly serious offences and reinforcing obligations regarding investigation, prosecution, prevention, and assistance to victims.
However, in light of the rapid development of digital technologies, the exponential increase in the online dissemination of child sexual abuse material, the growing anonymity of perpetrators, and the emergence of new forms of abuse, the European Commission launched a comprehensive evaluation of the Directive in 2022, as part of its 2020 EU Strategy for a more effective fight against child sexual abuse.
The evaluation revealed legal gaps, uneven implementation among Member States, and a clear need to update the legal framework—particularly to address the technological challenges of today’s digital environment.
Following this analysis, the Commission initiated a broad consultation process, involving national authorities, EU agencies (such as Europol, Eurojust, and the FRA), NGOs, academic experts, international partners (including the U.S. NCMEC), industry stakeholders, and citizens.
Several reform scenarios were assessed through an impact assessment: a basic legal clarification (Option A), an update of offence definitions to reflect technological advances (Option B), and a more ambitious overhaul encompassing prevention, victim assistance, cross-border cooperation, and law enforcement measures (Option C).
The Commission selected Option C as the preferred scenario, as it addresses both the initial shortcomings of the Directive and the evolving nature of the crime. It centres on a targeted revision of the Directive, enhanced cooperation between Member States, stronger support for victims, improved prevention strategies, and a more prominent role for the EU Centre to prevent and combat child sexual abuse, foreseen in a complementary regulation.
This legislative reform was approved by the Regulatory Scrutiny Board in January 2023, subject to technical clarifications that have since been incorporated into the final proposal.
2- Description
In addressing the complex legal reform encompassed by the proposed directive, the categorization of the 36 articles according to their legal and policy function offers a comprehensive and systematic approach. This typology enables a clear understanding of the multifaceted nature of the reform, facilitating both interpretation and implementation by legal practitioners, policymakers, and institutional actors.
A- Criminalization and Scope of Offences
The first category focuses on the expansion and clarification of criminal offences related to child sexual abuse and exploitation, responding to technological developments and evolving modes of abuse.
Article 2 significantly broadens the definition of illicit material to include abuse content generated through artificial intelligence and virtual reality, and explicitly criminalizes the possession and dissemination of so-called “paedophile handbooks,” thus addressing the modern tools that facilitate abuse.
Article 3 harmonizes penalties for sexual acts with children irrespective of coercion, eliminating loopholes that previously allowed for lower sentences in cases lacking physical force.
Article 4 intensifies penalties for child prostitution, signaling a shift toward more stringent deterrence. Article 5 carves out an exemption from criminal liability for certain public-interest organizations that may incidentally handle abuse material, ensuring that essential reporting and research work is not impeded.
Article 6 ensures that online solicitation, including grooming, is unequivocally criminalized, while Article 7 addresses the growing problem of live-streamed child sexual abuse, making its transmission and facilitation a distinct offence.
Article 8 criminalizes the operation and maintenance of digital infrastructure, such as dark web forums, used for the perpetration of these crimes. Article 9 revisits aiding, abetting, and attempt provisions, likely expanding liability to include digital facilitation and preparatory acts within virtual environments.
Article 10 importantly distinguishes between adult-child interactions and consensual peer exchanges, limiting the defense of purported “consent” and ensuring that the criminal law does not capture non-exploitative behaviour between minors.
Article 26 modernizes terminology by replacing outdated phrases like “child sex tourism” with more precise language. Article 27 introduces preventive strategies aimed at potential offenders, a novel addition to the criminalization framework that seeks to address risk factors before offences occur.
B- Criminal Procedure and Investigations
The second typology focuses on procedural mechanisms intended to bolster law enforcement capabilities and safeguard due process.
Article 11 clarifies jurisdictional rules, particularly in cross-border and cyberspace contexts, ensuring that Member States can assert authority even when offences transcend traditional territorial boundaries.
Article 12 mandates background checks for those seeking employment or volunteer roles involving children, strengthening preemptive screening. Article 13 ensures that law enforcement agencies are equipped with modern investigative tools, potentially including those necessary to access encrypted communications, conduct undercover operations, or surveil online platforms.
Article 14 standardizes sanctions for legal persons, including companies or entities complicit in abuse facilitation, and introduces consistent methods for calculating financial penalties.
Article 15 extends non-prosecution protections to victims coerced into distributing or appearing in abusive digital content, reflecting a victim-centered perspective that acknowledges the complexity of coercion in online spaces.
Article 16 mandates minimum statutes of limitations, calibrated to the gravity of offences, and reinforces investigatory duration to avoid premature case closure.
Article 17 introduces mandatory reporting obligations for certain professionals while also exempting those working with potential offenders in a therapeutic context, striking a balance between prevention and confidentiality.
Article 22, though also relevant to victim protection, specifically restricts the use of invasive medical examinations during investigations, emphasizing the need to minimize retraumatization of child victims.
C- Victim Support and Rights
The third category aims to enhance the rights, support systems, and legal remedies available to victims and survivors.
Article 18 requires that reporting mechanisms be made accessible and child-friendly, promoting proactive engagement by victims.
Article 21, already closely aligned with the broader Victims’ Rights Directive, reinforces assistance and support obligations, mandating age-appropriate, comprehensive care that includes psychological, medical, and legal aid.
Article 22, also classified under procedural safeguards, plays a dual role by limiting invasive investigative practices and thus directly protecting victim dignity.
Article 23 strengthens the right to compensation, expanding the scope of liability, extending timeframes for claiming restitution, and diversifying potential sources of compensation, including state-funded schemes where offender restitution is unavailable.
D- Prevention and Awareness
This typology is dedicated to proactive strategies designed to curb the incidence of abuse through education, early intervention, and capacity-building.
Article 19 mandates that Member States implement public awareness campaigns and education initiatives targeting both children and adults to promote safe online behaviour and knowledge of reporting channels.
Article 20 focuses on at-risk populations, such as children in alternative care or migrant contexts, by calling for tailored prevention measures and early detection strategies.
Article 27, while included in the criminalization typology for its role in potential offender intervention, also belongs here for its role in reducing recidivism and first-time offending through psychological support and therapeutic programmes.
Article 28 requires Member States to expand prevention duties by integrating child-centered education and assigning training and coordination responsibilities to the future EU Centre, enhancing consistency and depth of prevention efforts.
E- Institutional Coordination and Governance
The fifth typology addresses structural reforms to improve governance, data-sharing, and inter-agency cooperation at both national and EU levels.
Article 24 mandates the designation of national authorities responsible for coordinating abuse prevention efforts, establishing a centralized point of accountability.
Article 25 obliges Member States to develop multi-agency coordination frameworks, bringing together judicial, social, and law enforcement actors. Article 31 introduces harmonized statistical reporting requirements through the EU Centre, facilitating comparative analysis and evidence-based policy.
Article 32 formalizes the EU-level reporting cycle, requiring the European Commission to report to the Parliament and Council every five years on the implementation and impact of the directive.
Article 29 elaborates on the supportive role of the EU Centre, likely covering areas such as capacity-building, research dissemination, training, and the creation of best practice guidelines.
Article 30 establishes an EU network of national coordinators to streamline information exchange, policy alignment, and the dissemination of effective interventions, ensuring cross-border consistency.
F- Implementation, Legal Alignment, Procedures, and Entry into Force
The final typology concerns the procedural, temporal, and legal mechanics of the directive’s adoption and integration into national systems.
Article 1 defines the subject matter and objectives of the directive, namely the prevention and combating of child sexual abuse and exploitation in both offline and online settings, with a particular emphasis on protecting victims.
Article 33 details the provisions that Member States must transpose into national law, outlining the legislative obligations incumbent upon them. Article 34 formally repeals Directive 2011/93/EU, ensuring legal continuity and avoiding conflict between overlapping legislative instruments.
Article 35 sets forth the entry into force provisions, including timelines for application and transitional arrangements, particularly those involving the establishment and operationalization of the EU Centre. Article 36 serves as a placeholder for formal adoption, finalizing the legislative process through publication and procedural ratification.
Altogether, the proposed directive presents a cohesive and ambitious framework that seeks to modernize and strengthen the European Union’s legal response to child sexual abuse and exploitation. It does so by addressing emerging threats, reinforcing procedural fairness, prioritizing victim rights, promoting institutional coordination, and ensuring robust legal alignment across Member States. The structural comprehensiveness and legal granularity of the proposal reflect an evolved understanding of the multifactorial nature of child sexual abuse, integrating technological, psychological, juridical, and social dimensions into a unified legislative instrument.
II– Analysis
1. Semantic Shifts: Reframing the Conceptual Language of Abuse
One of the most significant discursive evolutions in the proposed recast of Directive 2011/93/EU lies in the deliberate replacement of the term “child pornography” with “child sexual abuse material”.
This terminological shift is not merely linguistic but ideologically and legally consequential. The expression “child pornography”, while historically entrenched, has long been criticised for implicitly normalising or trivialising the criminal nature of the material by aligning it with adult consensual pornography. The updated term “child sexual abuse material” (CSAM) more accurately reflects the criminal and abusive reality of the acts depicted, centring the harm to the child, rather than the medium or the consumption.
Similarly, the replacement of “child sex tourism” by “sexual exploitation of children in travel and tourism” marks a move toward deconstructing euphemistic framings of organised abuse. The new terminology foregrounds the agency of perpetrators and the exploitation of victims, moving away from language that obfuscates criminal responsibility.
These terminological updates reflect a maturation in EU legal vocabulary, one increasingly aligned with a victim-centred and harm-focused perspective, and are consistent with international guidelines such as those proposed by the Terminology Guidelines for the Protection of Children from Sexual Exploitation and Sexual Abuse (Luxembourg Guidelines).
2. The Ontology of the Image in the Age of AI
The proposal introduces a profound transformation in the ontological understanding of the “image” in legal terms. Article 2’s amended definition now explicitly encompasses synthetic, hyperrealistic, or AI-generated representations (e.g., deepfakes) and virtual reality depictions, including those with haptic feedback.
This reflects a necessary evolution of the legal notion of visual material in the face of technologies that dissolve traditional distinctions between reality and simulation.
The expansion of the definition to include avatars or “realistic reproductions” of children foregrounds a functional rather than literal approach to imagery: what matters is not whether the child exists, but whether the representation serves a sexualised purpose and carries potential to reinforce exploitative behaviours or normalize abuse. Thus, the law adapts its reach to maintain normative coherence in the face of technological disembodiment of abuse.
This adjustment reveals an emerging jurisprudence of immateriality, wherein representational harm is treated with the same gravity as documented abuse, precisely because of it is affront to the dignity of the human figure, here embodied in its most fragile form — childhood.
3. The Redefinition of Interaction and the Hardening of the Normative Framework
In Article 6, the offence of solicitation has undergone important modifications. Notably, the requirement that the child be below the age of sexual consent has been removed in the updated text. This change broadens the applicability of the offence and reorients the focus from the status of the child to the intentionality of the adult.
In parallel, the definitional removal of the phrase “who are close in age and degree of psychological and physical development or maturity” narrows the scope for exception or contextual leniency, thereby reinforcing the absolute nature of the prohibition on adult-child solicitation regardless of claimed proximity in age or maturity.
Together, these revisions manifest a hardening of the normative regime, prioritising legal clarity and child protection over contextual flexibility, even where some national systems had previously allowed for degrees of interpretive leeway in cases of near-age consensual interactions.
4. Rebalancing EU vs. Member State Competences: A Shift in Regulatory Centrality
Several deletions in the recast proposal indicate a strategic centralisation of legal authority at the EU level, and a reduction in Member State discretion. For instance:
- The removal of the requirement for Member States to notify the Commission of their national transposing measures weakens transparency in legal harmonisation and suggests greater EU-level monitoring through indirect mechanisms (e.g., via the EU Centre or reporting duties).
- The suppression of national discretion clauses—such as those relating to private use exemptions for certain types of material or to the optional nature of intervention programmes—signals a deliberate move away from subsidiarity and toward a more uniform criminal justice framework across the EU.
- The deletion of Recital 24, which acknowledged that consensual sexual experimentation between minors falls outside the scope of the Directive, may have far-reaching consequences. Its removal arguably exposes all such interactions to potential criminal scrutiny, unless exempted under peer-related definitions or prosecutorial discretion, raising concerns around overcriminalisation and age-appropriate sexual development.
This reconfiguration reveals a tension between EU competence and national cultural/legal specificities, and suggests that the EU is asserting a more proactive regulatory role in an area traditionally characterised by national diversity and moral pluralism.
III- Commentary : A Necessary and Timely Recalibration
Taken together, the amendments proposed in the recast Directive reflect a decisive evolution in EU criminal law regarding child protection. They mark a shift toward more consistent, technologically attuned, and victim-centred norms, but also raise questions about legal proportionality, subsidiarity, and the fine balance between protection and autonomy.
As such, the recast text represents not merely a technical update, but a substantive reaffirmation of the EU’s normative priorities in the digital age.
The proposed recast of Directive 2011/93/EU represents not only a technical update of the European legal framework, but also a necessary recalibration of its moral and normative compass in response to evolving societal and technological realities.
By broadening definitions, clarifying obligations, and reinforcing the rights and protections afforded to children, the reform demonstrates the EU’s commitment to anticipatory, coherent, and child-centred legislation.
It corrects past hesitations, addresses emerging forms of abuse facilitated by digital tools, and strengthens the infrastructure for cross-border cooperation and victim support. More fundamentally, it consolidates the understanding that child protection is not negotiable, even—or especially—in the face of innovation.
We support this reform as a necessary step toward a more just, integrated, and forward-looking legal order that truly reflects the rights and dignity of the child in the 21st century.
